United States v. Sergio Lopez-Beltran

AMENDED OPINION

This court’s opinion filed May 29, 1979, is withdrawn in light of the government’s petition for rehearing, and instead the following is substituted.

Appellant Sergio Lopez-Beltran was charged in a one-count indictment of violating 8 U.S.C. section 1325 in that he illegally entered the United States at a time and place other than that designated by immigration officers and further that such entry was effected after a prior conviction of illegal entry into the United States. Because of the allegation that appellant had been previously convicted of violating section 1325, the indictment charged him with a felony.

Appellant filed a motion to dismiss the indictment on the grounds that the prior conviction upon which the felony indictment was predicated was infirm because the magistrate had violated Rule 11(f), Federal Rules of Criminal Procedure, in accepting appellant’s guilty plea. The trial judge denied appellant’s motion, and the case was tried upon stipulated facts. Defendant was found guilty and sentenced to two years in custody, which sentence was suspended on the condition that appellant serve 180 days in a jail-type or treatment institution, and that…